Volume 166 — North Carolina Reports

Appeal by defendant from Carter, Jat Spring Term, 1914, of Macon. This is a controversy without action, submitted under section 803 of the Revisal of 1905, to determine the validity of $30,000 thirty-year 6 per cent road bonds by Franklin Township, Macon County.

Appeal by defendant from Long, Jat December Term, 1913, of RANDOLPH. Tbis is an action to recover damages for tbe wrongful death of tbe plaintiff’s intestate, caused, as alleged, by tbe negligence of tbe defendant. Tbe intestate was injured on 1 December, 1903, and died on 7 June, 1912. On 27 December, 1903, tbe intestate executed tbe following conditional release: Seaboard Am Line Railway. Conditional Release .Agreement.

Appeal by plaintiffs from Lane, Jat March Term, 1914, of Gutlfobd. Civil action beard on exceptions to report of referee.

Appeal by defendant from Shorn, J., at September Term, 1913, of GuileoRD. Tbis is an action to recover damages for injuries alleged to have been caused by defendant’s negligence. Tbe case was before us at a former term, and is reported in 162 N. 0., 485. Several of tbe questions now presented were tben decided adversely to tbe defendants, and we will not consider tbem again upon á second appeal. Latham v. Fields, post.

Appeal by defendants, from Garter, J., at October Term, 1913, of BuNcombe. Action to recover tbe amount of a note for $1,750, secured by a deed of trust, to cancel the satisfaction of the deed of trust on the record, which was wrongfully entered by the trustee, E. Rogers Grant, and to foreclose the deed of trust by sale of the land described therein, under the order of the court.

Appeal by defendant from Garter, Jat September Term, 1913, of BuNOOmbe. This is an action upon a policy of insurance issued 8 January, 1912, by defendant to Lewis Schas, for the benefit of his mother, the plaintiff, Fannie Schas. Lewis Schas died about 3 September, 1912.

Appeal by plaintiff from Lyon, J., at December Term, 1913, of Martin. Tbis action was brought to recover the difference between the amount charged by defendant and that collected on shipments of peanut# during the period beginning with 1 January, 1908, and ending with 11 April, 1909, and heard on a case agreed. The shipments moved in interstate commerce from Williamston, N. C., to Philadelphia, Pa., and New York City.

Appeal by plaintiff from Ferguson, J., from Haywood, at • chambers, 1 September, 1913. Civil action, heard on return to preliminary restraining order.

Appeal by defendant from Ferguson, J., at Fall Term, 1913, of MACON. Tbis is an action to recover an overcharge on an interstate shipment of freight, and the penalty prescribed in section 2644. After the freight had been paid, the plaintiff applied to the defendant for its rate, and correctly made np its claim of $3.75, based on the rate given. The defendant refused to pay the claim, and the plaintiff sued to recover the sum of $3.75 and the penalty.

<p>No record filed.</p> <p>Motion, in tbe Supreme Court for a supersedeas and also for writ of Prohibition.</p>

Appeal by plaintiff from Ferguson, J., at chambers, 18 April, 1914; from Pasquotaitk. This is. an appeal, in an action brought by a taxpayer, from an order dissolving an injunction which restrained the defendants from issuing and selling certain bonds. The Legislature of 1907 passed an act known as chapter 117, Private Laws 1907, which act was amended first by chapter 319, Private Laws 1909, and again by chapter 487, Private Laws 1913.

Appeal by defendant from Garter, J., at Spring Term, 1914, of 'Gkaham. This is an action in the nature of an ejectment, tried upon • these issues.: 1. Are the plaintiffs named in the complaint the owners of the land described in the complaint, and entitled to the possession of the same? 2. Is the defendant, Harvey Crisp, in the unlawful jjossession of that part of the land described in his answer ?

Appeau by plaintiff from 0. H. Allen, J., at November Term, 1913, of DupliN. Tbis is a civil action tried upon these issues: 1. Is tbe plaintiff a corporation, as alleged in tbe complaint ? Answer: Yes (by consent). 2-, Was tbe note sued on procured by,fraud and deceit of tbe Equitable Manufacturing Company? Answer: Yes. 3. Is tbe plaintiff the bona 'fide bolder of said note in due course? Answer: No. 4. Is the defendant indebted to the plaintiff, and if so, what amount?

Appeal by defendant from 0. H. Allen, J., at December Term, 1913, of DupliN. This is an action to recover damages for negligently setting fire to and burning tbe timber lands of tbe plaintiffs.

Appeal by defendant from Garter, jat March Term, 1914, of Graham.

<p>Appeal by plaintiff from Shaw, J., at October Term, 1913, of GrTTILEORD.</p> <p>This action was brought to recover the amount of a check drawn by Sol N. Cone, at Greensboro, N. 0., on 4 October, 1910, in favor of Latham, Alexander & Oo. of the city of New York, for $5,000. The check was received in due time by the payee, indorsed to and deposited with the plaintiff Standard Trust Company to the credit of said payee, who immediately drew it out by checks against the amount so placed to its credit as a cash item, this being in accordance with an understanding previously existing between Latham, Alexander & Co. and the plaintiff. Latham; Alexander & Co. did business with the Standard Trust Company under such circumstances as that all cheeks deposited by them were treated as cash items, i. e., they could immediately draw against them. The check was, on the same day, 5 October, after having been indorsed “Pay to the order of Girard Trust Company, Philadelphia,” by the Standard Trust Company of New York, mailed to the Girard Trust Company for “collection and credit.” On 6 October the Girard Trust Company received this check, and after indorsing on it “Pay to the Central National Bank. Prior indorsements guaranteed. 6 October, 1910,” Sent it by hand to the Central National Bank of Philadelphia, which bank received it on 6 October, between the hours of 9 and 3, and after indorsing it “Pay to the order of any bank, banker, or trust company. Prior indorse-ments guaranteed. 6 October, 1910,” it was mailed on 6 October to the defendant bank at Greensboro for'“collection, and remittance,” the hour of mailing being about 5 p. m. The indorse-ments were all regular and in proper form. According to the due course of the mails, a letter mailed in Philadelphia at or about 5 p. m., 6 October, 1910, would leave Philadelphia on the Pennsylvania Railroad train No. 55, arriving at Washington, D. C., at 3 :40 a. m., the 7th, and would come out of Washington to Greensboro on the Southern Railway train No. 35, leaving Washington at 9 a. m., and arriving at Greensboro at about 6 p. m., the 7th. On the dates in question, the regular mail connections were made, Southern 35 reaching Greensboro on the 7th at 6:24 p. m. So, according to the due course of the mails and the business .of the defendant bank, this check arrived in Greensboro on the evening of 7 October and should have been in the bank to be handled by its cashier shortly after 8 o’clock on the morning of 8 October. At the opening of the bank on that morning, Sol N. Cone, the drawer of the check, had to his credit $19,432.52. The 8th was Saturday. Some time between 7 and 9 o’clock on the 8th, Cone attempted to commit suicide. He was then owing’ the defendant bank a note of $10,000; his attempt at suicide led to- inquiry, which disclosed his insolvency. On 10 October (Monday), after having ascertained Cone’s financial condition, the defendant - charged against his account the note of $10,000 due it. His deposit, at the opening of the bank on the 10th,- was the same as it was on Saturday, towit, $19,432.52. After charging this $10,000 against his account, the defendant bank, through its cashier, Boyles, presented the check to itself and duly protested it for nonpayment, because of an alleged insufficiency of funds, and returned it to the Central National Bank of Philadelphia by mail, where it was received on 11 October.</p> <p>The defendant denied the receipt of the check on the 8th, but admits it was found in its mail and was in its possession on the 10th, which admission, taken in the light of the surrounding circumstances, put it in its hands, to its knowledge, before the opening of the bank.</p> <p>There appears a second series of indorsements upon the check, which are thus accounted for: Upon its return to plaintiff, in New York, on the 13th, it was immediately sent back to Greensboro, through the Philadelphia banks, it being sent this last time, however, to the American Exchange Bank, instead of direct to defendant, upon which it was drawn. The facts in connection with this second series of indorsements are not now pertinent, further than they tend to corroborate and sustain plaintiff’s contention as to the usual course of the mails, and the receipt of the check, on its first trip, the morning of the 8th, rather than the 10th, according to the contention - of the defendant.</p> <p>The court, at the close of .the plaintiff’s testimony, entered judgment of nonsuit, and the latter appealed.</p>

<p>1. Municipal Corporations — Cities and Towns — Ordinances—Violation — Trials—Negligence—Proximate Cause — Instructions.</p> <p>The plaintiff sued.the defendant for damages to his automobile, alleging that the defendant was negligently running his own automobile at the time on the left-hand side of a city street, forbidden by an ordinance, and thus caused a collision, resulting in the damages claimed in his action. There was conflicting evidence as to whether the plaintiff was on the wrong side of the street and caused the collision by turning his automobile as the defendant turned to the left side of the street to avoid the collision, when imminent, and whether the consequent damages resulted from the plaintiff’s negligence. The ordinance made it lawful to cross over to the left-hand side of the street for certain purposes, and it is held for reversible error that the court charged the jury that the defendant was negligent if, at the time of the collision, he was on the left-hand side of the street, as such withdrew from the consideration of the jury that the defendant had a right under the provisions of the ordinance to drive on the left-hand side of the street for lawful purposes, and also the question of proximate cause.</p> <p>2. Municipal Corporations — Cities and Towns — Ordinances—Trials —Negligence Per Se — Proximate Cause.</p> <p>While the violation of a city ordinance relating to the running of automobiles on the streets of a city is negligence per se, it is necessary, to recover damages alleged to have been caused thereby, that the plaintiff show that this negligence was the proximate cause of the injury complained of.</p>

' Appeal by. defendant from Ferguson, J.,. at- October Term, 1913, of SwaiN. Tbis action was brought to recover damages for the false and fraudulent representations of defendant as to the quantity and quality of felled timber on the waters of Bunches Creek, and on the yard situated on Mingo Creek, the amount, of timber on Bunches Creek having been represented to be 2,000,000 feet, and that on Mingo Creek, in the yard, as 500,000 feet.

<p>Injunction — Vacating Restraining Order — Appeal and Error — Acts Committed — Courts—Procedure.</p> <p>Where ■ a restraining order has been vacated and appealed from, and it appears, upon the hearing in the Supreme Court, that the act sought to be restrained has been practically done, it is only in rare and exceptional instances that the Court may satisfactorily and intelligently decide upon the matters presented, the practice being for the appellant to reserve Ms rights by exceptions, regularly taken, at .the trial, if necessary, and present them on appeal from the final judgment in the Superior Court.</p>

<p>Railroads — Right of Way — Necessary Superstructures — Warehouse —Leases to Patrons — Benefits—Public Duties.</p> <p>The principles of law which permit a railroad company to judge of the necessity for the use of its right of way for the convenience of the company and in the furtherance of its corporate business, extends for like purposes to the erection of warehouses or superstructures thereon, and it may permit or lease this right to its patrons as such in consideration of benefits to be received from them in the routing of their freight arising from the use of such buildings as stores and warehouses, when not prejudicial to its other patrons or inconsistent with its duties as a public-service corporation.</p>

Appeal by defendant from Ferguson, J., at November Term, 1913, of OheRoicee. This action or proceeding was brought by the plaintiffs to reform and recover upon a bond given by the defendants in an action brought by Robert N. Archer and others against George ~W. McClure.

Appeal by plaintiffs from Allen, J., at May Term, 1914, of Wake. Tbis is a civil action, tried upon an agreed statement of facts. Tbe purpose of tbe action is to enjoin tbe issuing and selling of a certain, bond issue. Tbe court denied tbe injunction, and tbe plaintiff appealed.

<p>1. Intoxicating Liquors — Prohibition Law — Druggists—Exceptions— License — Interpretation of Statutes.</p> <p>One of the restricted instances where the sale of intoxicating liquors is allowed under our prohibition laws, which have become the established public policy of our State, is by licensed and regular pharmacists upon the written prescription of a physician, etc. (Revisal, sec. 2063), and in order that an abuse of this public policy may not be allowed, our statutes have imposed certain conditions upon which the license may be obtained by a druggist, requiring application to be made to the board of eojunty commissioners, with certain safeguards as to character, place of sale, etc. (Revisal, sec. 2064) ; and that the license shall be printed in a certain form and issued by the sheriff upon the order of the board of commissioners (Revisal, sec. 2066). Held, that a license issued by the sheriff to a druggist to sell intoxicating liquors, without meeting these requirements, is void, and a sale made under such invalid license is a violation of the prohibition law.</p> <p>2. Intoxicating Liquors — Carriers of Goods — Refusal to Deliver— Penalty Statutes — Unlawful Sales — Interstate Commerce.</p> <p>A druggist who has not received a valid license, in accordance with the requirements of our statutes, to sell intoxicating liquors for the purposes and in the manner indicated, may not recover of the carrier the penalty provided by Revisal, sec. 2633, for the failure to deliver such liquors to him for the purposes of sale, for such are unlawful and prohibited, and cannot be aided or encouraged by the courts of the State, whether the shipment be intrastate or interstate.</p> <p>3. Intoxicating Liquors — Unlawful Sales — Carriers of Goods — Penalty Statutes — Interstate Commerce — Constitutional Law.</p> <p>The delivery of intoxicating liquors for the purposes of sale is made unlawful by our statute, Revisal, sec. 3534, and the Webb-Kenyon law forbids delivery in interstate commerce; and whether this law is constitutional or otherwise, it could not be considered that our courts should penalize a carrier for refusing to deliver such shipment to the consignee in violation of our laws enacted to carry out our established public policy in relation to such matters. Federal Constitution, Art. I, sec. 8, clause 3.</p> <p>4. Intoxicating Liquors — Prohibition Law — Exceptions—Validity of License — Collateral Attack — Direct Proceedings — Issues.</p> <p>Where a consignee of goods brings bis action against tbe carrier to enforce tbe delivery to him of intoxicating liquors for tbe purposes of sale, claiming that be has a right to tbe liquors and tbe sale thereof, being a duly licensed druggist for whom an exception is made by our prohibition laws, tbe action puts tbe existence and validity of tbe license directly at issue, and tbe objection is not tenable that its validity is being collaterally attacked; especially, as in this case, where it appears that tbe license is invalid for tbe want of compliance with tbe provisions of tbe statute upon which alone its validity could be sustained.</p>

<p>1. Deeds and Conveyances — Reverse Calls — Location of Points— Calls in Deed — Acreage — Distance — Variance — Trials — Evidence.</p> <p>Where the disputed title to lands depends upon the location thereof contained in the description of a prior grant, which is represented upon the map filed as a parallelogram with the northern boundary as a river, the first call being definite and fixed, the second call being to a stake upon the river, which by actual survey is found to deflect sharply northward between the first and second calls of the grant, without giving the distance between them, but giving the distance between the other calls to a stake, it is correct that the calls he reversed by the surveyor for the ascertainment of the-second call, and then follow course and distance given in grant; and it is held that this manner of ascertaining the boundaries of the land granted is not affected by the number of acres therein specified, or that the distance between the third and the last call does not conform to that given on the map.</p> <p>2. Grants — Plats—Variance—Trials—Evidence.</p> <p>A plat of the land attached to the original grant is not conclusive, and cannot control the words of the grant; and in connection with other testimony, it is competent as evidence that the location by an original survey was different from that actually ascertained by running the calls of the grant.</p>

<p>1. Railroads — Condemnation—Right of Way — Measure of Damages —Offsets. 3</p> <p>Tlie damages which may be awarded to the owner of lands through which a railroad company has condemned a right of way are such as are directly caused by and are confined to injuries peculiar to the lands condemned, and not such as are generally caused to lands in that community; nor is the railroad company entitled to have the damages offset by advantages generally accruing to the community, but only those which accrue to and enhance the value of the particular lands condemned by reason of the advantages to be especially derived by them from the operation of the railroad.</p> <p>2. Railroads — Condemnation—Right of Way — Cotton Mills — Speculative Damages — Expert Evidence — Trials.</p> <p>Where a corporation is the owner of lands being condemned for a right of way by a railroad company, upon which it has tenant houses rented to its employees, and which are situated on a tract of land upon which defendant operates a cotton mill, the defendant is not entitled to recover damages of a speculative character, i. e., such as possible inconvenience caused to its employees by the noise or smoke from the plaintiff’s trains, or the inconvenience or danger to the operatives in going to or from work; or danger to their children caused by the operation of the railroad near their dwellings; or any possible increase in the cost of operating the plant caused by the running of the plaintiff’s trains, etc.; and as the damages recoverable are those apparent to the ordinary observation of persons acquainted with the value of lands in that locality, the matter is not such as would call for “expert opinion” of those who have special knowledge of cotton mills generally and of operating conditions generally affecting their value.</p> <p>3. Railroads — Condemnation—Rights of Way — Cotton Mills — Measure of Damages.</p> <p>Where lands of a cotton mill corporation are condemned for a right of way of a railroad company, the damages to be assessed are the value of the lands taken for the right of way, and any injury shown to have been done to the remaining part of the land, by way of special damages, such as impairing the physical X>roperty in tlie mechanical operation of its plant by vibrations and smoke; and it is error to allow evidence as to the difference in value of the whole tract before the condemnation of the right of way and afterwards.</p> <p>4. Judgments — Interest—Interpretation of Statutes — Trials — Instructions — Evidence.</p> <p>Interest is not allowed on a judgment rendered in the Superior Oourt for damages awarded by the jury to the owner for taking his lands in condemnation (Revisal, see. 1954) ; for while the jury may award interest in their verdict, the owner may not complain when such has not been done, in the absence of a special request for instructions with relation to it, and the absence of evidence tending to show he is entitled to it.</p> <p>5. Railroads — Condemnation—Dwellings—Tenant Houses — Interpretation of Statutes.</p> <p>A railroad proceeded to condemn the lands of a cotton mill corporation, and upon the easement to be acquired there were several tenant houses belonging to the defendant. The defendant resisted the plaintiff’s right of condemnation upon the ground that the statute, Revisal, 2575, expressly requires the consent of the owner tó the taking of his “dwelling-house, yard, kitchen,” etc.: Held, the section referred to is an exception to section 257S, giving such public-service corporation the right to condemn lands, and does not apx>ly to tenant houses, but only to the dwelling of the owner of the lands, which is preserved to him for sentimental reasons; and which could not exist where such owner is a corporation renting the dwelling to its tenants.</p> <p>Hoke and Allen, JJ., dissenting; Walker, J., dissenting in part.</p>

<p>Contracts — Restraint of Trade — Partnerships—Waiver.</p> <p>F. and R., barbers, were partners in the town of M. F. bought out R. under an express agreement that the latter would not engage in the same business in the town of M. so long as F. continued it there. They again formed a partnership* at M., and thereafter R. separately engaged in the trade of barber in opposition to F. Held, that the negative stipulation in the agreement of the parties in the former dissolution was intended to prevent rivalry between them in opposing the skill and influence of R. in the business of barber at M., which was not revoked impliedly by the formation of their second partnership, for therein both the skill and influence of R. was for the firm’s benefit, and to the advantage of each member, and the formation of the second partnership could not in any manner conflict with the agreement entered into between F. and R. upon the dissolution of the first partnership, nor be considered as a waiver of the rights of F. to insist upon it; and it is further held that the agreement was not objectionable as being in restraint of trade, and is, therefore, en-foreible. The law as to contracts in restraint of trade discussed by Walker, J.</p>

Appeal by defendant from Shaw, J., at October Special Term, 1913, of SwaiN. Tbis is an action to recover land, and damages for wrongfully withholding possession thereof. The defendants denied the title of the plaintiffs, and set up an equity under a bond for title of date 22 November, 1882, but which was not registered until 4 January, 1904.

Appeal by defendant from Bragaw, J., at September Term, 1913, Of OURRXTTTCK. This is an action to establish the right to use a certain lane, described in the complaint, and to restrain the defendant from obstructing the same. At tbe conclusion of tbe evidence tbe defendant moved for judgment of nonsuit, wbicb was refused, and be excepted. There was a verdict and judgment in favor of tbe plaintiff, and tbe defendant appealed.

Appeal by defendant from Connor, J., at November Term, 1913, of Nash. Tbis is an action to recover tbe value of services rendered by tbe plaintiff to tbe testatrix of tbe defendant under a contract, as alleged, that tbe said testatrix would provide compensation for tbe plaintiff in ber will, if sbe remained witb her until sbe married. There was a verdict and judgment for tbe plaintiff, and tbe defendant appealed.

Appeal by caveator from Coohe, J., at December Term, 1913, of Wake. Issue of devisavit vel non. Tbis issue was submitted: “Is tbe paper-writing being propounded, and every part thereof, tbe last will and testament of W. W. Cooper, deceased?” and was answered by tbe jury in tbe affirmative. Tbe caveator^ appealed.

Appeal by plaintiffs from order of Rountree, J., given, at chambers, 24 November, 1913. This is an action commenced in the Superior Court of Pen-des County to prevent the erection of a Confederate monument at the intersection of Fremont and Wright streets in.Burgaw, upon the ground that it would be an obstruction in the streets. The plaintiffs obtained a temporary order restraining the erection of the monument, which was returnable and was heard in Columbus County.

<p>E-rom CRAVEN. No transcript sent to reporter.</p>

<p>Appeal and Error — Second Appeal — Same Exceptions.</p> <p>Sphere a case Las been tried in the Superior Court in accordance with a decision therein rendered on a former appeal, exceptions therein taken will not again be passed upon by the Supreme Court on a second appeal.</p>

Appeal by defendant from Coolee, J., at Spring Term, 1913, of Stokes. Tbis is an action to recover damages for tbe speaking of certain slanderous words. The jury returned the following verdict : “1. Hid the defendant falsely speak of the plaintiff that she, meaning the plaintiff, had stole things from the stores around here, and were the words uttered in the hearing of other persons, as alleged in paragraph 2 of the complaint? Answer: ‘Yes.’ ■ “2.

<p>Appeal by defendant from Devin, J., at December Term7 1913, of OraNG-b.</p> <p>Civil action. These issues were submitted to the jury;</p> <p>1. Was the plaintiff’s intestate killed through the negligence of the defendants, as alleged in the complaint? Answer: Yes.</p> <p>2. Did the plaintiff’s intestate assume the risk, as alleged in the answer? Answer: No.</p> <p>3. What sum, if any, is the plaintiff entitled to recover? Answer: $1,300.</p> <p>From the judgment rendered, the defendants appealed.</p>

Appeal by defendant from Adams, J., at August Term, 1913, of’ UNION. This is a'processioning proceeding.

Aepeal by defendant from Lane, J., at November Term, 1913, of Foesyth. This is an action to recover damages for an alleged libelous publication of date 14 January, 1909. At the trial terra the plaintiff moved to amend the complaint theretofore filed, which declared upon the publication, by alleging that the defendant declared a boycott against the plaintiff in the Spring of 1908. His Honor denied the motion as matter of law, and the plaintiff excepted and appealed.

Appeal by defendant from Cline, J., at tbe January Term, 1914, of McDowell CouNty. This is a civil action. These issues were submitted to the jury: 1. Did the defendant, J. L. Leach, cause the arrest and prosecution of the plaintiff, J. Q. A. Michael, upon the warrant and indictment referred to in pleadings? Answer :• Yes. 2. Was the same done without probable cause? Answer: Yes. 3. Was the same done with malice? Answer:* Yes. 4. Has the criminal action terminated?

<p>Appeal by plaintiff from Devin, J., at December Term, 1913, of ORANGE.</p> <p>This is an action to recover a mule, and from a judgment in favor of the interpleader, Cheek, the plaintiff appeals.</p>

<p>Trials — Negligence—Nonsuit.</p> <p>In this action to recover damages of the defendant it appears that plaintiff, 5 or 6 years old, was injured while at play with , other children, jumping from a heavy iron tank lying on defendant’s yard. Held, the judgment of nonsuit entered in the lower court will not be disturbed, it appearing that an injury of this character could not have been reasonably anticipated, so far as the record discloses.</p>

Appeal by plaintiff from Harding, J., at November Term, 1913, of 1ÍECKLENBÚRG. Tbis is an action to bare a trust declared, and to recover a lot of land. Upon an adverse ruling as to tbe admissibility of certain evidence, not necessarily determinative of tbe action, tbe plaintiff submitted to judgment of nonsúit and appealed.

<p>Master and Servant — Trials—Contributory Negligence.</p> <p>It is held that this case was correctly tried in the court below, the jury correctly instructed upon the legal principles involved, and that the injury alleged was not caused by the defendant’s negligence, but by plaintiff’s inattention in operating a cotton gin.</p>

<p>Appeal by plaintiff from Peebles, J., at May Term, 1913, of ORANGE.</p> <p>Civil action tried upon these issues:</p> <p>1. Is tbe defendant, Charles Nichols, indebted to tbe plaintiff, Ida Latta, and if so, in what amount? Answer: No.</p> <p>2. Is tbe plaintiff, Ida Latta, indebted to the defendant, Charles U. Nichols, and if so, in what amount? Answer: Yes; $55.29, with interest from 23 January, 1912.</p> <p>3. Is tbe defendant, Charles U. Nichols, indebted to tbe inter-pleader, Richard Latta, and if so, in what amount ? Answer: $20.</p> <p>From judgment rendered, tbe plaintiff appealed.</p>

<p>Civil actioe, tried at April Term, 1914, of MONTGOMERY, Harding, J., presiding, upon tbe report of a referee and tbe exceptions thereto.</p> <p>Tbe court made tbe findings of fact embodied in tbe following judgment:</p> <p>1. That tbe beginning point in tbe land of tbe plaintiff is at a hickory, red oak and white oak pointers, in tbe line of J. C. Mosser & Co., and running thence north 27 east 441 feet to a stake, center of road, Parson’s line, Spanish oak and black-jack pointers; thence south 28% degrees east witb road and Parson’s line 300 feet to stake in road; thence south 53 east with road and Parson’s line 450 feet to stake in road; thence south 59 east witb road and Parson’s line 825 feet to rock, beginning corner of Parson’s tract, and tbe corner of J. C. Mosser & Co.</p> <p>That the last call in the land described above as set out in the deed is thence north 71 % west with line of J. C. Mosser & Go., I,246 feet, to the beginning, containing 5 acres, more or less.</p> <p>2. That there is sufficient evidence to fix the last line in the deed to the plaintiff, other than north 71% west with'line of J. C. Mosser & Co.</p> <p>3. That the evidence of P. E. Barber as to the following question and answer is competent: “What is the true direction from that rock corner to the fore and aft tree?” Answer: “North 73 degrees and 47 minutes west.”</p> <p>The defendant in apt time objected to the competency of the foregoing question and answer. The objection overruled, and the defendant excepts.</p> <p>4. That the true boundary line between the plaintiff and defendant is a straight line running from the rock referred to as the northeast corner of the defendant’s land and the southeast comer of the plaintiff’s land to the beginning, referred to in the first finding of fact as the hickory, red oak and white oak pointers, on the line of J. C. Mosser & Co.</p> <p>5. That the true course of said line is north 73 degrees and 47 minutes west.</p> <p>6. That the evidence of the reputation of the location of the J. 0. Mosser & Co. line and the Dempsey Pittman line is competent, and the defendant objects in apt time. Objection overruled, and defendant excepts.</p> <p>The court adopts the conclusions of law of J. A. Spence, referee, and affirms the same as the judgment of this court. To the foregoing findings of fact and conclusions of law the defendant in apt time excepts.</p> <p>From the foregoing findings of fact and conclusions of law it is, therefore, ordered, adjudged, and decreed that the plaintiff is the owner of the land described in the complaint hereinbefore set out, as described therein, except as to the last line, and that the last line in said description runs as the true line from the rock at the northeast corner of defendant’s land and the southeast corner of the plaintiff’s land, north 73 degrees and 47 minutes west to tbe hickory, red oak and white oak pointers, in the line of J. 0. Mosser & Co., referred to in the deed to the plaintiff as the beginning corner. W. F. HaediNG,</p> <p> Judge Presiding. </p> <p>The defendant excepted and appealed.</p>

<p>New Trial? — Evidence,, Prejudicial — Appeal and Error.</p> <p>It is held, on consideration of this petition to rehear, that the decision heretofore filed is correct in holding that evidence of a substantive and material character had been admitted to the appellant’s prejudice, and in awarding a new trial.</p>

Appeal by defendant from Webb, J., at January Term, 1914, of Wilkes. This is a civil action for damages for personal injury received in the service of the defendant. These issues were submitted to the jury: 1. Was the plaintiff injured by the negligence of the defendant? Answer: Yes. 2. Did the plaintiff, by his own negligence, contribute to his own injury? Answer; No. ■■ 3. Did tbe plaintiff sign tbe release and receipt offered in evidence? Answer: Tes. 4.

Appeal by plaintiff from Ferguson, J., at October Term, 1913, of JacksoN. Civil action to enforce specific performance of contract to convey lands. On motion duly entered, there was judgment of nonsuit, and plaintiff excepted and appealed.

<p>Appeal by plaintiff from Ferguson, J., at October Term, 1913, of JacksoN.</p>

, 11 April, 1914; from Cherokee. This is a petition for a writ of mandamus, beard upon tbe complaint, answers, and affidavits, by bis Honor, Judge Garter. His Honor made an order therein, wbicb is set out in tbe record, from wbicb tbe defendant appealed.

<p>1. Cities and Towns — Fire Districts — Ordinances.</p> <p>A town ordinance creating and regulating a fire district within the town is valid when authorized by statute.</p> <p>2. Same — Building Permits — Substantial Repair.</p> <p>An ordinance passed by a town under authority of a statute provides that no wooden building destroyed by fire, etc., or damaged more than a third, within the fire district, shall be repaired, “except as hereinafter provided,” and a further section requires that permits for building and repairing within this fire district shall first be obtained from the town commissioners. Held, that a substantial repair cannot be made within such district, though less than “one-third,” without obtaining the permit. Repairing a building by renewing piazza thereon is a substantial repair, and a violation of the ordinance if done without the permit.</p> <p>Bbown, J., dissents.</p>

Appeal by defendant from Peebles, J., at Fall Term, 1913, of YaNCe. Criminal action tried on appeal from recorder’s court. The facts and occurrences of the trial are sufficiently and fairly stated in the case on appeal as follows: R. M. Saunders testified for the State: “I am chief of police of Henderson. On 23 August of this year I was at Cooper’s 'Warehouse, between the hours of 2 and 5 o’clock, watching3 through a crack in the wall.

Appeal by defendant from Peebles, J., at November Term, 1913, of Halifax. This is an indictment charging the defendant with the crime against nature, in that he had carnal knowledge of a male person. The evidence tends to prove an attempt on the part of the defendant by inserting his private parts in the mouth of the male. There was a special verdict which consists in a recital of the evidence, which the jury finds to be true.

Appeal by defendant from Peebles, J., at September Term, 1913, of Bertie. The defendant was convicted of highway robbery. He is a one-armed negro boy 19 years of age.

Appeal by defendant from Peebles, J., at Fall Term, 1913, of YaNCE. This is an indictment for the murder of Charles Snyder on 1 February, 1913.

Appeal by State from Peebles, J., at September Term, 1913, of YaNCE. Indictment for assault with a deadly weapon on one William Royster. The jury returned a special verdict acquitting the defendant. The relevant and material facts in such verdict are as follows: “That William Royster stopped the defendant on the highway along which he was driving and found in the buggy 3 to 5 gallons of liquor.

<p>1. Indictment — Motions to Quash — Interest of Grand Juror.</p> <p>A motion to quash a bill of indictment on the ground that the foreman of the grand jury was interested in the prosecution will be denied when it appears that the foreman took no part in passing upon the indictment and signed the bill under the direction of the grand jury and returned it in open court. Revisal, sec. 3232.</p> <p>2. Witnesses — Qualifications—Appeal and Error.</p> <p>The determination of the trial judge of the disqualifications of witnesses to testify for lack of sufficient age or mental capacity is not reviewable on appeal. The religious requirements of a witness discussed, and Revisal, secs. 1496 (29), 2360, and 2354, referred to by Clark:, C. J.</p> <p>3. Criminal Law — Larceny from Employer — Confidence — Trials— Evidence.</p> <p>Upon a trial for larceny from an employer, evidence of whether or not the prisoner was trusted by the employer is incompetent.</p> <p>4. Criminal Law — Instructions—“Reasonable Doubt” — Definition.</p> <p>No particular formula is required of the judge in defining to the jury what is “reasonable doubt” in a criminal action; and his stating it to be “the same kind of reasonable doubt that an honest man meets up with in human life” is held to be no error in this case.</p> <p>Walker and Allen, JJ., concur in result.</p>

<p>Appeal by defendant from Coolee, J., at September Term, 1913, of Wake.</p>

<p>Appeal and Error — Homicide—Escape—Filing Brief — Rules of Court.</p> <p>When an appellant escapes pending his appeal to this Court, the Court in its discretion will either dismiss the appeal or affirm the judgment or continue the case. It can make no difference that the appellant is convicted of a capital felony. That entitles him to no special privileges.</p>

<p>Appeal by defendant from Cooke, J., at Fall Term, 1913, of Wake.</p> <p>Tbe defendant was convicted upon a warrant charging that be bad engaged in tbe business of selling, etc., intoxicating liquors. Tbe warrant does not negative tbe idea tbat tbe defendant is a druggist' or a medical depositary, and tbe defendant moves in arrest of judgment in tbe Supreme Court for tbis alleged defect.</p> <p>The other exceptions of the defendant are:</p> <p>“1. The court erred in admitting the question of the solicitor, put to the witness Mangum, 'as to what business the defendant was engaged in,’ as tending to show the character of the defendant, who had not then been introduced as a witness in his own behalf, and who was not afterwards introduced as a witness in his own behalf.</p> <p>“2. The court erred in admitting the answer of the witness Mangum, 'that the defendant never had any business that he knew of,’ as directly proving the character of the defendant, who was not introduced as a witness in his own behalf, and who did not open up his character by asking any witness introduced by the State as to his character.</p> <p>“3. The Court erred in refusing to give the following special instruction as asked for by the defendant, towit: 'That in addition to the possession of the liquor, there must be evidence that the defendant has the liquor for the purpose of sale before the jury can find the defendant guilty.’</p> <p>“4. That the court erred in not instructing the jury, in answer to the .contention of the defendant, that the statements of the defendant that he had sold whiskey were mere ‘big talk,’ braggadocio, was meant in fun and jest, and not as the truth.</p> <p>“5. That the charge was riot responsive to the request contained in the special instruction: that there was no evidence whatever of any sale of the liquor which the defendant had in his possession, and the only evidence of any sale was what the defendant said in .fun and jest.”</p> <p>Judgment was pronounced against the defendant, and he ap-j)ealed.</p>

<p>1. Homicide — Motive—Evidence—Bad Blood.</p> <p>Upon a trial for murder, evidence is competent upon the question of motive for the crime, which tends to show ill-feeling of the prisoner towards the deceased, and the cause thereof; and where the deceased was the brother of the prisoner’s deceased wife, it is competent to show that his wife’s family, including the deceased, had charged the prisoner with having mistreated his wife.</p> <p>2. Homicide — Subsequent Circumstances — Evidence.</p> <p>Testimony of relevant circumstances immediately following the homicide, and which tends to show the guilt of the prisoner, is competent.</p> <p>3. Homicide — Evidence—Contradiction.</p> <p>Where on a trial for murder the prisoner’s witness has been examined before the coroner and has made an affidavit before the clerk of the court, it is competent, for the purpose of contradiction, but not as substantive evidence, on cross-examination, to question him as to the statements he had thus theretofore made.</p> <p>4. Appeal and Error — Unanswered Questions — Exceptions.</p> <p>Exceptions to unanswered questions, without proper statement as to their relevancy to the subject-matter of the trial, will not be considered on appeal.</p> <p>5. Homicide — Evidence—Impeaching.</p> <p>Evidence that the witness for the prisoner -on trial for homicide had stayed in the same cell with him on the XDrevious night is competent for the purpose of impeaching the testimony of the witness.</p> <p>6. Homicide — Deadly Weapon — Malice Implied — Burden of Proof.</p> <p>The killing of deceased by the prisoner with a deadly weapon implies malice, which would sustain a conviction of murder in the second degree; the burden being upon the State to prove deliberation and premeditation for conviction for the greater offense of murder in the first degree, and upon the prisoner to show matters in defense to justify a less offense or acquittal.</p> <p>7. Homicide — Premeditation—Evidence.</p> <p>The evidence on this trial for homicide tends to show that on the day thereof the prisoner had quarreled with the deceased, who was a brother of his deceased wife; he went to the place where the deceased worked, and spoke to him in abusive language ; the prisoner fired upon the deceased, who was unarmed, five times with a pistol as they were walking towards each other, and then inflicted the fatal wound with a gun he was also carrying. Held, evidence of deliberation and premeditation sufficient to sustain a verdict of murder in the first degree.</p> <p>8. Appeal and Error — Recitals in Exceptions.</p> <p>Keeitals in the appellant’s exceptions not set out as a part of the statement of case on appeal settled by the judge will not be considered.</p> <p>9. Same — Homicide—Trials—Prejudice.</p> <p>Where the prisoner has appealed from a sentence of murder in the first degree, and as a part of his exceptions states that the wife of the deceased, with her children, attended the trial in mourning, and boarded at the same place with the jury, such recitations, if considered as a part of the case on appeal, will not alone be sufficient to set aside the sentence of the court.</p>

<p>Landlord’s Lien — Guests — Surreptitious Departure — Trials—Questions for Jury.</p> <p>When there is evidence that one having received accommodation at a hotel left with his baggage without notice to the proprietor and without having paid his hotel bill, it is sufficient for conviction, under ch. 816, Laws 1907; Pell’s Rev., 8434a; it being for the jury to determine whether he surreptitiously removed the baggage to defeat the landlord’s lien (Rev., 2037), the statute not requiring proof or charge of intent to defraud in such instances.</p>

<p>Appeal by defendant from Devin, J., at Spring Term, 1913, of Eobstth.</p>

Appeal by defendant from Lame, J., at December Term, 1913, of Forsyth. Indictment for murder. The defendant was convicted of murder in the second degree, and from this judgment pronounced, appeals.

Appeal by defendant from Devin, J., at January Term, 1913, of ROCKINGHAM. The defendant was convicted upon the charge of unlawfully selling spirituous liquors to O. C. Sharp, who was the only witness for the State, and testified as follows: That he knew Jeff Cardwell, and that he lives in Reidsville. That he had a transaction with Jeff Cardwell relative to whiskey. That he went to him and asked him if he would get him a gallon of whiskey.

Appeal by defendant from Shaw, J., at September Term, 1913, of Guilford. This is an indictment for murder. Tbe prisoner, a negro boy, was found g'uilty of tbe murder in tbe first degree of E. L. Bain, a deputy sheriff, and was sentenced to death, and appealed.

Appeal by defendant from Lane, J., at August Term, 1913, of Mo ORE. This is an indictment for tbe murder of George McCain on 28 October, 1912. It was alleged by tbe State tbat tbe prisoner knew tbat tbe deceased bad a large amount of money on bis person, and tbat be lured bim into a swamp, about 300 or 400 yards from tbe station at Aberdeen on tbe Seaboard Air Line Railway, for tbe ostensible purpose of gambling with bim, but for tbe real purpose of robbery.

<p>1. Homicide — Assault — Defense of Mother — Justification—Deadly Weapon — Superior Strength.</p> <p>Upon trial of the prisoner for homicide of his brother, justification was relied upon as a defense, and there was evidence tending to show that the defendant was physically deformed and the deceased was a man much stronger and of a dangerous character, who had assaulted their mother, had knocked the prisoner down when he attempted to interfere, and received the deadly cut from a knife the prisoner used'while he was being held down. Held, that the prisoner was only permitted to use such force as the mother could have reasonably used in her own defense to repel the assault,' and that the court properly charged the jury that they, in passing upon this question in relation to the personal assault made on the prisoner, should consider, under the circumstances, the relative size, strength, and position of the deceased and the prisoner, and determine whether the prisoner apprehended or had reasonable grounds to apprehend, at the time, either that he was in danger of losing his life or receiving great bodily harm.</p> <p>2. Homicide — Assault—Justification—Apprehension of Harm — Without Fault.</p> <p>Where one, unprovoked, assaulted another, when he was at a place he had a ri^ht to be and doing what he had a right to do, the person assaulted may stand his ground and use such force in repelling the assault as may reasonably lead him to believe, and which he does believe, necessary to prevent his being killed or receiving serious bodily harm at the hands of the assailant, to the extent of taking Ms life; and the charge in this case, that the prisoner must have been “without fault” in provoking the assault, is held to be a correct statement of the law arising from the evidence.</p> <p>3. Same — Trials — Instructions—Burden of Proof — Questions for Jury.</p> <p>Upon a trial for murder wherein it appears that the prisoner killed the deceased with a deadly weapon while the latter was making an assault upon him unarmed, but that the deceased was of greatly superior strength and a dangerous character, matter in justification may be shown by the prisoner, both from his own and the State’s evidence, that, under the circumstances, he killed his assailant with reasonable apprehension that it was necessary to do so either to save liis own life or to keep himself from great bodily harm, though ordinarily the use of a deadly weapon would not be required, the question -as to the degree of force the prisoner could use in his self-defense, and how the evidence should be considered, being for the jury under correct instructions from the court, the burden of proof being on the prisoner to show matters in mitigation to reduce the offense from murder in the second degree.</p>

Appeal by defendant from Lane, J., at'January Term, 1914, of Guilford. Indictment for abandonment. There was evidence offered by tbe State witb a view of supporting tbe bill of indictment.

Appeal by defendant from Harding, J., at February Term, 1914, of Eowan. The defendant was convicted upon an indictment charging the larceny of $390 from his father-in-law, Thomas Spratt, and appealed from the judgment rendered upon the verdict.

Appeal by defendant from Webb, J., at September Term, 1913, of Polk. Tbe prisondrs were indicted in the court below for the murder of Milton Patterson. The evidence tends to show that Grover Wilkerson, Milton Patterson (the deceased), Dean Bolán, and Will Harris went to the house of Jim Foster, where the homicide occurred, and there found Mrs.-Minnie Foster and Andrew Eobertson and Cephas Foster (the prisoners), Tom Israel, and Fairy Foster.

<p>1. Criminal Laws — False Pretense — Indictment—Surplusage.</p> <p>In a warrant or indictment it is not necessary to cliarge an intent to defraud any particular person (Revisal, see. 3432), and where the charge therein is made that the intent was to defraud an actual person and a fictitious one, the allegation as to the person is surplusage, and a motion in arrest of judgment for a fatal variance in that respect will be denied.</p> <p>2. Criminal Law — Corporations—Intent—False Pretense — Principal and Agent.</p> <p>Where an agent of a corporation in the course of his and his employer’s business obtains anything of, value for the corporation by false pretenses (Revisal, sec. 3432), the corporation may be convicted of the fraudulent intent exercised for its benefit by its agent, and the agent may also be made a .eodefendant with his principal in the criminal action.</p>

Appeal by defendant fromHarding, J., at February Term, 1914, of RowaN. Tbe defendant was charged with the violation of “an ordinance of the town of Spencer, ch. 12, sec. 2, in that she did curse on the streets, loud enough to be heard by those passing by, in a disorderly manner, and on the streets of the town.” The proof was that she had been arrested for violating an ordinance and given a bond for her appearance to answer the charge.

<p>1. Intoxicating Liquors — Trials — Evidence—Declarations—Conversations.</p> <p>Upon a trial oí the defendants, husband and wife, for the unlawful sale of intoxicating liquors, a witness for the State testified that he was a private detective, and went with one M. to the home of the defendants, with evidence tending to show that he purchased whiskey from the wife in the presence of her husband, and, representing himself as a whiskey salesman, obtained orders from each of the defendants. Held, testimony of this witness, that in being introduced' to the. defendant by M. the latter said the witness could take orders from them, is not hearsay, but competent as a circumstance tending to show that the defendants were engaged in the liquor traffic.</p> <p>2. Appeal and Error — Assignments of Error.</p> <p>An assignment for error made to the charge of the trial judge should set out briefly the parts of the charge excepted to; and in this case it is held to be insufficient that the charge is set out and the assignments refer to such portions as appear between certain marks of identification.</p> <p>3. Intoxicating Liquors — Husband and Wife — Trials—Instructions— Presumptions — Appeal and Error — Harmless Error.</p> <p>Upon this trial for the unlawful sale of intoxicating liquors, there was evidence tending to show that the defendants, husband and wife, kept such liquors for sale at their homo, and that the /erne defendant made the sale to the State’s witness, in the presence of her husband, she testifying that she had not ■ sold any intoxicants, and making no claim, therefore; that she was unlawfully acting under the restraint of her husband. Held, the judge erroneously instructed the jury as to their verdict upon their finding as to whether the wife or husband would be guilty upon the evidence of the husband’s acquiescence or approval ; but it is further held as harmless error, as the jury fully understood that her conviction rested entirely upon the question of whether she made the unlawful sale, and if so, did she- act willingly and of her own accord.</p> <p>Clark, C. J., concurring.</p>

<p>1. Homicide — Premeditation—T rials — Evidence—Murder—Presumptions — Burden of Proof.</p> <p>Upon the trial for homicide there was evidence tending to show that the prisoner worked for the deceased, and was angry and cursed him because he did not bring him some clothes he was expecting, and that he followed the deceased and killed him with a pistol, the deceased offering no resistance, and being unarmed. Held, evidence sufficient that the homicide was willful, deliberate, and premeditated, and the court properly instructed the jury to return a verdict of guilty of murder either in the first or second degree; and his further instruction, that they could acquit the prisoner, was not error of which he could complain. The charge of the court upon the law of premeditation, presumption of malice from the killing with a deadly weapon, and burden of proof, is approved.</p> <p>2. Appeal and Error — Objections and Exceptions — Specific Exceptions.</p> <p>An exception to the charge of the court must be to a specific proposition wherein error is alleged and pointed but, and an exception contained in an excerpt from the charge, containing several propositions, is not sufficieritly definite for its consideration on appeal.</p> <p>3. Indictment — Name of Deceased — Charge of Court.</p> <p>Wher.e the indictment was for murder-of “John A. Blue,” and the court charged that the trial was for murder of “J. A. (Archie) Blue,” it is not error when there was no question of identity and no objection was taken at the time.</p> <p>4. Trials — Instructions—Reading from Decisions — Appeal and Error —Harmless Error — Delays of Trial.</p> <p>It is not commended that the trial judge while instructing the jury should lengthily read from decisions of the Court bearing, though correctly, upon the law relating to the controversy at issue; but this will not be held for reversible error.</p> <p>The long delays of the law in trials for homicide in this country, compared with that in other countries, discussed and the remedy suggested by Clark, C. J.</p> <p>Allen, Brown, Hoke, and Walker concur in the decision of the case.</p>

<p>Appeal by defendants from Fergmon, J., at September Term, 1913, of Haywood.</p>

Appeal by defendant from Cline, J., at Fall Terra, 1913, of Avery. The defendant was indicted for the murder of Roby Carter on 21 July, 1913, and from the judgment rendered on a verdict of manslaughter, he appealed. He was sentenced to four years in the State’s Prison. The deceased was living on a place owned by one Charles Yoncanon, about 1% or 2 miles' from Yoneanon’s residence.

<p>Appeal by defendant from Long, J., at September Term, 1913, of Row AN.</p>

<p>1. Criminal Law — Abortion — Trials—Evidence—Harmless Error— Interpretation of Statutes.</p> <p>Upon trial of a defendant for unlawfully, etc., administering a certain “noxious drug” to a pregnant woman with the intent to produce a miscarriage, against the provisions of Bevisal, secs. 3618 and 161"9, testimony as to sexual intercourse is immaterial, and its admission harmless error.</p> <p>2. Criminal Law — Abortion — Expert Evidence — Effect of Drug— —Trials—Evidence—Interpretation of Statutes.</p> <p>Where the defendant is being tried for an intent to produce an abortion upon a pregnant woman, contrary to Bevisal, secs. 3618 and 3619, and there is evidence that a capsule given contained a certain drug, it is competent for experts to testify as to the effect of such in producing a miscarriage.</p> <p>3. Criminal Law — Accomplice—Trials—Evidence—Abortion—Interpretation of Statutes.</p> <p>While the judge should caution the jury as to the weight to be given the testimony of an accomplice to the crime upon which the defendant is being tried, a conviction may be had upon the unsupported testimony of the accomplice; bul it is held that the victim of the defendant in the latter’s effort to produce a miscarriage upon her, contrary to Revisal, secs. 3618 and 3619, is not an accomplice in the crime, in a legal sense, whether she consented thereto or not.</p> <p>4. Criminal Law — Abortion—Intent—Interpretation of Statutes.</p> <p>It is the intent with which a noxious drug is administered, and the purpose to produce an abortion, that is made indictable under our statutes, Revisal, secs. 3618 and 3619; and it is not necessary for the State' to show that administering the drug named would have had the desired effect.</p> <p>5. Criminal Law — Judgments—Cruel and Unusual Punishments— Constitutional Law.</p> <p>The defendant was indicted, tried, and convicted of administering to a pregnant woman a noxious drug for the purpose of producing an abortion, contrary to Revisal, secs. 3618 and 3619. Held, a sentence to the State Prison for three years and the payment of ,$1,000 as a fine is not objectionable as cruel and unusual punishment.</p>

<p>Appeal by defendant from Cline, J., at January Term, 1914, of TIeNdersoN.</p>

Appeal by defendant from Garter, J., at September Term,. 1913, of MadisoN. We will state the substance of so much of the testimony as bears upon the exceptions of the prisoner, Wallace Ray. The defendant and one Logan Franklin were indicted for the murder of Greeley Hensley in December, 1912. During the trial a verdict of not guilty was entered as to Logan Franklin. Gaither Shelton, a witness for the State, testified that the killing occurred near his store on Shelton Laurel.

<p>Appeal and Error — Attorney and Client — Duty-of Client — Laches.</p> <p>In criminal as well as civil cases it is the duty of the party' appealing to see that his case on appeal has been prepared and sent up under the rules, and this duty is not excused because he has intrusted it to his attorneys, paid them the necessary fees for the transcript, etc., and, relying upon them, has taken no further steps until it was too late.</p>

xIppeal by defendant from Goohe, Jat October Term, 1913, of FRANKLIN. The defendant was convicted of an assault with, intent to commit rape, and upon judgment being pronounced against bim, appealed.

<p>Appeal by defendant from Devin, J., at December Term, 1913, of Forsyth.</p> <p>This is an indictment under tbe search and seizure law, charging the defendant with having intoxicating liquors in his possession for the purpose of sale.</p> <p>The only witness offered by the State was George W. Elynt, who testified that on 23 November he had a warrant against the defendant for having in his possession liquor for the purpose of sale, and in company with another officer went to the house of the defendant, south of Winston-Salem, and found that the defendant was not at homo, but his wife was there, and he notified the defendant’s wife that he wished to make a search for liquors. That he found on the premises of the defendant one jug containing one gallon of liquor and a number of small bottles containing about one-half gallon. In addition to the liquor, he found a number of empty bottles, a rubber tube and several tin vessels, about which he noticed the smell of whiskey. He further testified that he took possession of the spirits and tin vessels, including an empty keg, and in company with the officer who went with him started back to Winston-Salem. On his way back he met the defendant in a buggy with one Sam Reid. That he asked the defendant if he had any liquor in the buggy with him, and the defendant said he had a pint, and upon searching the buggy be found three pint bottles, but tbe defendant claimed tbat two of tbe pints belonged to Sam Reid, wbicb Reid denied.</p> <p>Tbe State closed tbe evidence, and tbe defendant offered no evidence.</p> <p>His Honor charged tbe jury tbat having possession of a gallon of liquor, or more, is’evidence tbat tbe defendant bad it for sale, and while this is true, tbe State must satisfy tbe jury beyond a reasonable doubt tbat tbe defendant bad said liquor in bis possession for tbe purpose of sale, and not merely for his own private use.</p> <p>Tbe defendant excepted. Jury rendered a verdict of guilty, with recommendation, towit, mercy of tbe court, and bis Honor sentenced tbe defendant to six months to tbe county jail to be worked on tbe county roads. Tbe defendant excepted.</p> <p>Tbe defendant moves in arrest of judgment in'this Court for tbat tbe indictment fails to negative tbe exception in tbe statute tbat tbe defendant is a druggist or tbe keeper of a medical depository.</p>

<p>Appeal and Error — Court’s Discretion.</p> <p>The appeal in this case being from rulings of the trial court, is of matters largely within his discretion, and no error is found.</p>

xYppeal by defendant from. Adams, J'., at January Term, 1914, of GastoN. Tbe defendant, a superintendent of one of tbe cbain-gangs in Gaston County, was convicted of whipping a convict. Tbe whipping, with a leather strap l1/^ inches wide, 16 or 18 inches long, attached to a wooden handle 10 or 12 inches long, was admitted by the defendant, and the evidence for the State showed a serious beating and the use of a stick.

Appeal by defendant from Adams, J., at January Term, 1913, of GrASTON. Indictment for murder. Tbe defendant was convicted of manslaughter, and from tbe judgment of tbe court appeals.

<p>1. Tax Deeds — Requisites of Statute — Color of Title.</p> <p>Tbe purchaser of lands at a sale for taxes in 1898 who acquires a sheriff’s deed therefor in 1899, without making the affidavit and giving the notice required by secs. 64 and 65, ch. 16’9, Laws 1S97, has only color of title to the lands under his tax deed.</p> <p>2. Same — Possession — Presumptions — Burden of Proof — Trials— Evidence.</p> <p>R. was seized and possessed of certain lands, and lived thereon, until his death, with W. The latter received a tax deed from the sheriff to the lands, which operated only as color of title, and the two thereafter lived on the lands without change of attitude towards the possession, and after the death of R. his heirs at law sued to remove the tax deed as a cloud upon the title to the lands. W. testified that upon receiving the tax deed he immediately fentered into possession of the lands, cultivating it, etc. Held, there is no presumption in law of adverse possession against a true paper title, and the burden of proof was on W. to show some act of ouster of R., of which the evidence in this case is insufficient.</p>

Appeal by defendant from Ferguson, J., at April Term, 1914, of TYRRELL. This action, was brought to recover damages for an injury to plaintiff’s arm, requiring its amputation, which he alleges was caused by defendant’s negligence. Plaintiff was employed -by defendant, in its mill, to oil engines and machinery and to assist in keeping the machinery belts and belting, and other things connected therewith, in proper order.

Appeal by defendant from Ferguson, J., at January Term, 1914, of PERQUIMANS. This is a civil action tried upon these issues: 1. Did the defendant warrant the car, as alleged? Answer: Yes. 2. If so, was said car as warranted? Answer: No. 3. What damage, if any, is the plaintiff entitled to recover? Answer: Five hundred dollars ($500). From the judgment rendered, the defendant appealed.

<p>Appeal by defendant from Ferguson, J., at. March Term, 1914, of PasquotaNK.</p> <p>Civil action to set aside a deed on the ground of fraud and to restrain a sale of property thereunder.</p> <p>Plaintiffs alleged that they were induced to convey certain property in Elizabeth City to defendants by the false representations of one P. W. Moore, a member and secretary of plaintiff board, said Moore acting in the matter as agent of defendants; the deed in question being as follows:</p> <p>“This deed, made this 5-August, 1905, by Jamfes E. Brown, Elisha Overton, Eobert Bo we, A. L. Hawkins, Charles Norfleet, Charles Harvey, Dr. G. W. Cardwell, P. W. Moore, and W. B. Butler, trustees of the Colored Normal School, of Elizabeth City, N. O., parties of the first part, to the State Board of Education of North Carolina, party of the second part, witnesseth:</p> <p>“That whereas, by deed dated 11 July, 18?0, executed by George D. Poole, trustee, to T. W. Cardoza et cd., trustees of the Colored Normal School, and their successors in office forever, for permanent school purposes for freedmen and children irrespective of color, said deed duly recorded in Deed Book P. P., page 217, in tlie office of the register of deeds of Pasquotank County, conveying the hereinafter described tract or parcel of land; and whereas the said property is insufficient in value and quantity to support or maintain a school, and the said trustees cannot, therefore,' carry out the purposes of said trust; and whereas the State of North Carolina has been aiding in conducting a normal school, on said property, and purposes to further aid the education of the colored race by establishing a permanent colored normal school in or near Elizabeth City, N. C., for the education of the colored youth of Elizabeth City and surrounding territory; and whereas, at a regular meeting of the board of trustees of the property above referred to it was decided that the said board could best carry out the trust aforesaid by conveying the hereinafter described lot or parcel of land to the State Board of Education:</p> <p>“Now, therefore, in consideration of the premises and the further sum of $5 in hand paid by the party of the second part to the- parties of the first part, the receipt whereof is hereby acknowledged, the said parties of the first part have this day bargained, sold, and conveyed unto the party'of the second part, its successors and assigns, the following described tract or lot of land, situate in the State and county aforesaid and in the town of Elizabeth City, and bounded as follows: Situate on the east side of Shannon Street and fronting on said street about 123 or 125 feet, and bounded on the south by Brown Street, on the east by lot of Minerva Martin, and on the north by lot of Isaac Leigh, said lot being about 165 feet .deep.</p> <p>“To have and to hold the said tract or parcel of land, together with all the privileges, improvements, and appurtenances thereto belonging or in any wise appertaining, to the said State Board of Education of the State of North Carolina, its successors and assigns, in fee simple, with the understanding that the property or the proceeds from the sale of the same shall be devoted by the said party of the second part towards the permanent establishment of a colored normal school in or near Elizabeth City. In testimony, etc.”</p> <p>Motions of nonsuit, formally entered by defendants, were overruled, and defendants excepted.</p> <p>Tbe jury rendered tbe-following verdict:</p> <p>“1. Are tbe signatures of A. L. Hawkins and Elisba Overton or either of tbem forgeries? Answer: No.</p> <p>“2. Were tbe signatures of tbe grantors to tbe writing in question procured by tbe fraud and misrepresentation of P. W. Moore? Answer: Yes.</p> <p>“3. Was P. W. Moore tbe agent of tbe defendants or their board of local managers? Answer: Yes.”</p> <p>Judgment on tbe verdict for plaintiff, and defendants excepted and appealed.</p>

Appeal by defendant from Bond, J., at February Term, 1914, of Wilson*. This action was brought by the plaintiff for a mandamus to compel defendant to admit to the proper public school of said county for the white race his four children, who are of school age. He alleged that his oldest child, Arthur Johnson, attended school for two days, when he was refused further admission to and attendance, as a pupil, at the school.

<p>Appeal by defendant from Ferguson, J., at December Term, 1913, of CamdeN.</p>

Appeal by defendant from Ferguson, J., at January Term, 1914, of PERQUIMANS. This is a civil action, tried upon these issues: 1. Was the plaintiff injured by the negligence of defendant, as alleged in the complaint ? Answer: Yes. 2. Didithe plaintiff, by her own negligence, contribute to her said injury? Answer: No. 3. What actual damage, if any, is plaintiff entitled to recover ? Answer: $300. From the judgment rendered the defendant appealed.

<p>1. Canals — Water and Water-courses — Bridges—Maintenance—Convenience — Title—Damages—Trials—Evidence.</p> <p>“Turner’s Cut” was dug by the predecessor of the defendant from the mouth of its canal to a point on the Pasquotank River to avoid going through “Moccasin Tract” with boats, and thus saving some distance in their travel. When the defendant purchased the property of its predecessor, the Dismal Swamp Canal Company, there was a bridge over “Turner’s Cut,” which it maintained and erected a phone station to notify boats and rafts going through the “cut.” In cutting down expenses, the defendant did away with the phone station and ceased to maintain the bridge. The plaintiffs seek to compel the defendant to maintain this bridge for the benefit of their toll road, and by amendment of the pleadings to recover damages for the defendant’s failure to maintain it. Sold, it was competent for the defendant to prove that it had never acquired or claimed title to the lands through which “Turner’s Cut” had been dug; that the United States Government had taken over and controlled the “cut” as a part of its public waterways, appropriating large sums of money for its maintenance; and that the defendant had previously maintained the -bridge only for its own convenience; and Further held, that upon the facts established, there was no liability upon the defendants.</p> <p>2. Deeds and Conveyances — Defective Probate — Title.</p> <p>It is held in this case that the objection to the validity of probate of a deed under which the plaintiff claims title to the land in dispute is immaterial, the plaintiff having shown a connected chain of title through another deed, which was properly probated.</p> <p>Walker and Hoke, JJ., dissenting.</p>

Appeal by defendant from Ferguson, J., at March Term, 1914, of PasquotaNk. This action was brought by the plaintiff J. S. Campbell, in behalf of himself and, as next friend, in behalf of his son.

Appeal by plaintiffs from Ferguson, J., at June Term, 1914, Of 'WASHINGTON. Civil action to recover damages for physical injuries caused by alleged negligence of defendant in failing to keep the streets of the town in proper repair. At close of plaintiffs’ evidence, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed.

Appeal by defendant from Ferguson, J., at February Term, 1914, of PasquotaNK. This is a civil action, tried upon these issues: 1. Was the plaintiff injured by negligence of defendant, as alleged in the complaint? Answer: Yes. 2. Did the plaintiff by his own negligence contribute to his injury? Answer: No. .3. What damage has the plaintiff sustained? Answer: $300. From the judgment rendered, the defendant appealed.

<p>Bailments — Contracts—Hire of Mule — Negligence—Trials.</p> <p>An agreement of hire of a mule for plowing purposes for a period of two weeks, at the end of which time the mule should be returned in as good condition as received, is an ordinary bailment determined by the common law relating to bailments for hire; and the bailee, being held to exercise only ordinary care for its preservation and protection, is not responsible for the destruction of the mule and his consequent failure to return it, in the absence of any negligence- on his part. Robertson v. Lumber Oo., 165 N. "0., 4, cited and distinguished.</p>

<p>Appeal by plaintiff from Bond, J., at August Term, 1914, OÍ WASHINGTON.</p>

<p>1. Trials — Negligence—rEvidence—Questions for Jury.</p> <p>The plaintiff was injured while engaged in sawing logs for the defendant, and was struck by a log which had improperly been placed across a near-by pile of them by the defendant in such position that it would be likely to fall at any moment and strike him. Held, sufficient evidence of - defendant’s actionable negligence to be submitted to the jury.</p> <p>2. Master and Servant — independent Contractor — Issues—Trials— Questions for Jury.</p> <p>The evidence in this case is conflicting as to whether the defendant had let out the doing of the work, wherein the plaintiff was injured, to an independent contractor; and the charge of the trial judge upon the evidence, on this phase of the case, given upon the issue of negligence, is held no error, there being no specific issue 'submitted upon the question of independent contractor.</p>

Appeal by plaintiff from Ferguson, J., at December Special Term, 1913, of CamdeN. This is an action to recover damages for trespass on land and the title to the land is in isdue.

Appeal by plaintiff from Connor, J., at February Term, 1914, of Bertie. This is a civil action for damages for wrongfully and illegally attacbing tbe plaintiff’s property. Tbe following issues were submitted to tbe court by the plaintiff and accepted by tbe defendants, towit: 1. Did tbe defendants wrongfully, unlawfully, and without probable cause, attach tbe property of tbe plaintiff, as alleged in tbe complaint? 2.

Appeal by defendant from Ferguson, J., at January Term, 1914, of CTJRRITtrCK. This is an action to recover damages for personal injury caused, as the plaintiff alleges, by the negligence of the defendant in failing to furnish a sufficient force of hands to do the work in which the plaintiff was engaged at the time of his injury.

<p>Appeal by plaintiff from order of Ferguson, 15 April,-1914; from Gates.</p>

<p>Appeal by defendant from Connor, J., at April Term, 1914/ of Beetle.</p> <p>Controversy submitted without action. The demand of plaintiff was for the purchase price of land which plaintiff had bargained to defendant, and defendant resisted payment on the ground that the title offered was defective. The Court being of opinion that the deed of John II. Burden, tendered to defendant, would convey a good title, entered judgment for the contract price, and defendant excepted and appealed. ■</p>

Appeal by defendants from Bond, J., at January Term, 1914, of Nash. This was a special proceeding for the division of property belonging to a partnership, returnable before the clerk. Issues of fact being raised by the answer, the cause was transferred to the civil-issue docket for trial at a regular term.

<p>1. Carriers of Goods — Negligence—Water Damage — Evidence—Questions for Jury.</p> <p>Held, in tliis action to recover of tlie defendant carrier damr ages caused to a shipment of a car-load of peanuts, that the evidence of actionable negligence on the defendant’s part was sufficient which tended to show that the shipment was received from it in a damaged condition from water; that during its transportation it had been raining; that the roof of the car -leaked, and that the condition of the car was such that the rain could have beaten in between its slats.</p> <p>2. Carriers of Goods — Traffic Contracts — Pleadings—Amendments— Court’s Discretion.</p> <p>In an action between two carriers involving a balance alleged to be due the plaintiff under a traffic contract, it is within the discretion of the trial judge to allow the plaintiff to amend its complaint so as to allege that it had been forced to pay damages for a shipment of goods received by it from the defendant in a damaged condition, for which the defendant’s negligence, while in its care, was responsible; and while the amendment creates an additional cause of action, it is so germane to the original cause that both may be considered as one action.</p> <p>3. Carriers of Goods — Traffic Contracts — Connecting Carrier — Damage to Shipment — Payment—Limitation of Actions.</p> <p>Where the controversy between two carriers involves a balance alleged to be due the plaintiff under a traffic contract, and the plaintiff is allowed by the court to amend its complaint to allege damages it had had to pay a customer of the road, which arose from the defendant’s negligence, the cause of action thus alleged arose to the plaintiff at the time it paid the damages complained of, and the statute of limitations would begin to run from that time.</p> <p>4. Same — Trials—Burden of Proof.</p> <p>Where one carrier sues another for damages, alleged to have been paid by it, and caused by the latter’s negligence, the burden of proof is on the plaintiff to show that the defendant’s negligence caused the damages and that the plaintiff had paid them in the amount alleged; and in this case the evidence is held sufficient to be submitted to the jury that the damages were paid by plaintiff’s drafts on money in defendant’s hands, owing by the latter to the former.</p> <p>5. Contracts — Vendor and Vendee — Deferred Payments — Trials— Evidence.</p> <p>The plaintiff carrier purchased from the defendant carrier certain steamboats upon a certain cash payment, with agreement that the balance of the purchase price should be paid in equal amounts at stated times. There was evidence tending to show that the defendant carrier had moneys in its hands owing to plaintiff, under a traffic arrangement, sufficient to meet these deferred payments when due, and by the defendant’s testimony it was admitted that it had plaintiff’s money on hand, but could not state the amounts, and it was Held, on the question of allowing the defendant interest on the deferred payments, that it was for the defendant to show exactly what funds it had of plaintiff’s on hand at the various times for the payment of interest, and the question was properly left to the'‘determination of the jury.</p> <p>6. Pleadings — :Amendments—Court’s Discretion — Excusable Neglect —Appeal and Error.</p> <p>A refusal by the trial court to set aside a judgment rendered in an action upon contract, for surprise, inadvertence, and excusable neglect, on the ground that defendant had neglected to allege a mistake in the contract sued on, will not be disturbed on appeal when it appears that the pleadings had been filed, trial had upon the. merits of thé case, and the issues submitted were fully responsive to the pleadings.</p>

Appeal by plaintiff from Ferguson, J., at March Term, 1914, of ChowaN. Civil action to recover damages for injury to plaintiff’s automobile.

Appeal by defendant from Bond, J., at June Term, 1914, of Edgecombe. This is an action against tbe Atlantic Coast Line Railroad Company and tbe Southern Express Company to recover damages for failure to receive and transport certain beef, alleged to be tbe property of tbe plaintiff. Tbe plaintiff testified as follows: “I am tbe plaintiff. On Y August last I was living bere in Tarboro. I was at tbat time in tbe wholesale beef business.

<p>1. Reference, Compulsory — Exceptions to Order — Trial by Jury— Exceptions to Report — Issues Stated.</p> <p>A compulsory reference is proper in a controversy involving conflicting boundaries of lands, but a party may preserve bis right to a trial by jury by objecting and excepting to the order at the time it was made; and where he thereafter aptly excepts to the findings of the referee, and sets forth the issues upon which he desires a jury trial, he will not be held to have waived his rights thereto.</p> <p>2. Reference, Compulsory — Exceptions — Collateral Agreements— Substitution of Trustee — Waiver—Trial by Jury.</p> <p>Parties to an action which has been referred under a compulsory order of the court, who except to the order, but agree that it may be signed out of the term and district, do not by such agreement lose their rights to a trial by jury; nor do they lose such right by agreeing to the substitution of another referee, under the terms of the original order, upon the death of the referee therein named.</p>

<p>Appeal by plaintiff from Justice, J., at February Term, 1914, of WlLSON.</p> <p>Civil action to recover tbe contract price of certain fertilizers sold by plaintiff to defendant in 1907 for use on defendant’s farm for tbat year and to foreclose a mortgage on certain personal property to secure tbe debt.</p> <p>Defendant, admitting tbe amount and tbe execution of mortgage, set up a counterclaim and offered evidence tending to sbow tbat tbe-guano in question was sold by plaintiff to defendant in 1907 for use on defendant’s tobacco crop for tbat year, and was so sold to defendant as “Dunnington Special,” a bigh-grade fertilizer, specially suited to tobacco and known as “8-3-3 goods”; tbat defendant used good plants and same were properly put in and worked, and there was a marked diminution of bis crop, arising from lack of proper manure; tbat tbe guano sold to defendant under said representation was off grade or improperly mixed; tbat defendant’s crop for tbat year was thereby seriously injured, and tbat tbe amount of damage done, attributable to this default, was from $400 to $500, etc.</p> <p>Omitting tbe issues as to value of property secured by tbe mortgage, which are irrelevant to any question presented, tbe jury rendered verdict on tbe claim and counterclaim as follows:</p> <p>1. Is tbe defendánt indebted unto tbe plaintiff, and if so, in what amount? Answer: “Yes; $274.55.” (Answered by tbe court by consent.)</p> <p>4. Did tbe plaintiffs contract to sell to tbe defendant a fertilizer suitable for tbe cultivation of tobacco ? Answer“Yes.” (Answered by tbe court by consent.)</p> <p>5. "Was tbe guano sold by tbe plaintiff to tbe defendant suitable for tbe growth of tobacco ? Answer: “No.”</p> <p>6. Did tbe guano so sold contain tbe percentage of phosphoric acid and potash as represented? Answer: “No.”</p> <p>7. Was tbe defendant damaged by tbe use of said fertilizer, and if so, in what amount? Answer: “$187.50.”</p> <p>There was judgment for plaintiff for amount of debt, less tbe counterclaim, and plaintiff, having duly excepted, appealed.</p>

Appeal by plaintiff from Ferguson, J., at February Term, 1914, of Beaufort. Civil action to recover an alleged balance due uj)on a contract to build a bridge for the defendant. The court instructed the jury to find for the plaintiff in sum admitted by the defendant, towit, $284.95. The plaintiff excepted and appealed.

<p>1. Appeal and Error — Defendant’s Appeal — Appellee's Costs — Costs —Prosecution Bond — Interpretation of Statutes.</p> <p>Where the defendant to an action has appealed from an adverse judgment rendered in tlie Superior Court, resulting in a reversal thereof in the Supreme Court, he is, upon motion made in the Supreme Court, under Revisal, sec. 1251, entitled to a judgment for his costs on appeal against the sureties on plaintiff’s undertaking given in the lower court for the prosecution of the action; for under the language of this section and section 450 this undertaking or prosecution bond is required of the plaintiff to secure all costs, whether in the Superior or Supreme Court; and Revisal, see. 605, requiring the appellant to give an undertaking for the costs on appeal, cannot apply to-such instances.</p> <p>2. Same — Costs Superior Court — Penalty of Bond — Application to Increase.</p> <p>Where the defendant has been successful on his appeal to the Supreme Court, and his judgment for costs against the sureties on the prosecution bond of the plaintiff results in making insecure the costs in the Superior Court, the remedy is by application to increase the penalty of the bond.</p> <p>Hoke and Allen, JJ., dissenting.</p>

<p>1. Railroads — Apimals — Negligence — Statutory Presumptions — Geese — Common Law — Trials—Burden of Proof.</p> <p>No presumption of negligence against a railroad company is raised by the mere fact of killing fowls, etc., upon its track in the operation of its trains. Revisal, sec. 2645, makes it prima facie evidence of negligence in respect only to “cattle and other live stock,” which does not include “geese” or other fowl within its terms. ,</p> <p>2. Railroads — “Geese” — Judicial Notice — Negligence — Signals— T rials — Evidence—Nonsuit.</p> <p>Prom the phlegmatic disposition of geese, the blowing of the whistle or ringing of the bell is not calculated to make them run or fly to leave the track, as turkeys, a nervous fowl, would do; hence’, in an action to recover damages against a railroad company for the killing of geese upon its track by its train, it is not sufflcient to submit to the jury, upon the question of defendant’s negligence, evidence merely that the geese were killed upon the track by the defendant’s train, and that its employees did not sound the whistle or ring the bell of the locomotive. Lewis v. R. R., 163 N. C., 33, cited and distinguished.</p> <p>Hoke and Aleen, JJ., dissenting.</p>

<p>Appeal from Peebles, J., at February Term, 1914, of Hae-NETT.</p> <p>This is an action to recover money alleged to be due on a contract for cutting certain timber by the defendant on the plaintiff’s land, and the controversy is as to the quantity of timber cut.</p> <p>The case on appeal states that the plaintiff alleged in his complaint that the “plaintiff entered into a contract with the defendant to sell to the defendant the timber upon certain of the plaintiff’s land, at the price of $2 per thousand feet of lumber.” And this was admitted by defendant’s answer. The plaintiff offered evidence that tended to show that from a measurement of the stumps, laps and trees after the cutting, and counting the number of logs taken that the defendant cut and removed from plaintiff’s land 464,088 feet of lumber, and that the defendant had not paid him for but 328,731 feet, and that the said measurement was based upon a generally recognized rule of measuring lumber by what is known as “log measure.”</p> <p>The defendant offered evidence that tended to show that after the making of the original contract (which was in writing) between the plaintiff and the defendant, that it was agreed between them that they should settle for the timber in accordance with the lumber tallies of the concern to whom he shipped the lumber, and the defendant testified that the twenty tallies which were introduced by him, which aggregated 328,731 feet, were the bills or tallies which he and plaintiff had agreed to settle by, and defendant testified that actual measure of the lumber would be more than “log measure,” and thé plaintiff denied this agreement, and upon' this point his Honor charged the jury as follows :</p> <p>“This contract set up in the complaint and admitted in the answer sold the trees at $2 a thousand. After that contract was made, the defendant says that the plaintiff agreed to take the invoices, the counter-sales of the lumbermen to whom he sold the lumber. That was made after the other contract was made, and there is no consideration moving for it, and the plaintiff is entitled to recover $2 a thousand, log measure, including the sawdust that was cut out by the saws and the slabs — the outside that you cut off in order to make a sill.” To which charge the defendant excepted.</p> <p>His Honor charged the jury in part as follows:</p> <p>“Now, it was the duty of the defendant when he bought that timber by the thousand to have had the timber measured when every stick of that timber was brought to his mill; it was his duty to have it measured and make a memoranda of it, because Mr. McKinney, the plaintiff, had intrusted him with keeping an account of it. He admitted that he did not do that; but he says he shipped the timber to a firm in Raleigh, that the returns of that firm showed that he/ shipped them 328,731 feet. Some of it, he said, was planed; he admits that he kept no account of tbe logs; did not measure any of them, and be put on two or three men that said they went there and estimated it, and they estimated it, by just walking through and not counting the trees nor measuring any of them, at 250,000 feet. The plaintiff puts on two men who went there with him and measured the stumps and then to the lap where it was cut off and took as near as they could an average of the trees, and then averaged it, and there were 1,464 trees, and that the trees averaged 317 feet to the tree.</p> <p>“It is for you to say which is the more accurate way of measuring timber, which is the most reliable, to go there and measure the stumps or to go and walk through the woods and not count the trees or measure them.” To the foregoing charge the defendant excepts.</p> <p>“When you go to consider the testimony of the defendant, you have a right to consider for what it is worth the fact that he did not keep an accurate account of this lumber.” To the foregoing charge the defendant excepts. »</p> <p>There was a judgment in favor of the plaintiff, and the defendant excepted and appealed.</p>

Appeal by plaintiff- from Ferguson, J., at Spring Term, 1914, of PasquotaNK. Civil action, tried on appeal from justice’s court, in Superior Court.

Appeal by defendant from Peebles, J., at February Term, 1914, of JOHNSTON. Tbis is a civil action brought to declare a certain deed hereinafter set out void and as a cloud upon the plaintiff’s title.

Appeal by defendant from Bond, J., at June Term, 1914, of WlLSON. Plaintiff, while walking over a public crossing in tbe town of Lucarna, N. 0., was struck by a motor car of defendant moving along its track, and seriously injured.

<p>1. Railroads — Public Crossings — Signals — Pedestrian Away from Crossings — Usages—Negligence—Evidence—Headlights.</p> <p>Wberé a pedestrian is injured by a railroad train while walking upon its track away from a public crossing, evidence is competent tending to show that pedestrians habitually used the track at this place; and where the evidence further tends to show, the proximity of a crossing where signals are required to be given by the company, and that if they had been given on the occasion complained of the injury would not have been inflicted, such evidence is competent on the issue of defendant’s negligence, relating to the question of whether the defendant was carefully operating its train and giving the signals required.</p> <p>2. Railroads — Headlights—Negligence Per Se — Statutes—Criminal Law.</p> <p>Running a locomotive on the main line, at night, without a headlight is an indictable offense (Laws 1909, ch. 446), and hence negligence per se.</p>

<p>Telegraphs — Mental Anguish — Other States — Lex Loci Contractus.</p> <p>In an action against a telegraph company to recover damages for mental anguish alone for its negligent failure to transmit 'to and deliver a telegram in another State, and under the laws of that State a recovery for mental anguish may not be had unless accompanied with injury to the person or property, and it appears that the negligence complained of occurred wholly • in such other State, the laws of that State control, and a recovery will accordingly be denied by our courts.</p>

<p>1. Bills and Notes — Antecedent Debt — Transferee for Value.</p> <p>The transfer of a negotiable note by the holder to his creditor before maturity for an antecedent debt constitutes the transferee a holder for value. Revisal, sec. 2173.</p> <p>2. Same — Evidence — Trials — Instructions—Courts—Expression of Opinion — Statutes.</p> <p>Where a negotiable note held by a debtor bank has been transferred before maturity to its creditor bank, and there is evidence that at the time the former owed to the latter a larger sum of money than the amount of the note, and that the note was transferred as an extinguishment of the debt pro tanto, and in an action upon this noté, it is introduced in evidence showing an indorsement on the back, made by the plaintiff, “For collection account,” it is for the jury to find, under the conflicting evidence, whether the plaintiff received the note in part payment of the debt or for collection only, and an instruction by the judge that there is no evidence that the plaintiff paid value, and that it was its duty to appear and explain the transaction, is an expression of opinion forbidden'by the statute.</p> <p>3. Bills and Note's — Due Course — Presumptions—Fraud—Pleadings —Burden of Proof — Statutes.</p> <p>To rebut the presumption that every holder of a negotiable instrument, acquired before maturity, is one in due course, it is necessary for the defendant in an action thereon to allege fraud, and when properly pleaded, the burden is upon the plaintiff to show the hona fi&es of the transaction (Revisal, secs. 2208, 2201) ; but in this case it is held that fraud has been insufficiently pleaded, the allegation being that the maker was induced to sign through the representations or promises of another and for accommodation, without in any manner connecting the plaintiff, who acquired for value and before maturity, with the transactions alleged.</p>

Appeal by defendants from Ferguson, J., at Spring Term, 1914, of Daee. This action was brought to recover $1,500 as damages for an alleged breach of contract to sell and .deliver to the plaintiffs at Norfolk, Ya., f. o. b., 350 barrels of motor gasoline, the balance of the entire lot of 500 barrels called for by the original contract. It is alleged that the contract was made through one C. C. Clark, agent of the defendants, and the price was 8% cents per gallon.

Appeal by defendant from Peebles, J., at February Term, 1914, of IIaRNEtt. Civil action. ' Tbe following issues were submitted to the jury: 1. Was plaintiff’s intestate killed by the negligence of the defendant? • ■ 2. Did the plaintiff’s intestate, by his own negligence, contribute to his own injury? 3. What damage, if any, is the plaintiff 'entitled to recover ?

Appeal by plaintiff from Peebles, J., at March Term, 1914, of Lee. Civil action to recover damages for waste. Plaintiffs, children of John P. Thomas, deceased, by a former wife, and owners of a vested estate in remainder under their father’s will, sued the defendant, the widow of said Thomas, who occupies and possesses the land as life tenant under said will, claiming that the life tenant has committed waste upon the land.

<p>1. Cities and Towns — Claims for Damages — Statutory Notice — Reasonable Opportunity.</p> <p>A charter requirement that notice to a city must be given within piinety days after the occurrence of an injury for which it is claimed that the city is responsible through its negligence, is a valid one, and failure to give this notice will bar a plaintiff’s right of recover}’, unless it is shown by him that it was impossible, on account of his incapacity, with the ordinary means at his hands, to give such notice'in the time required.</p> <p>2. Same — Trials—Evidence—Questions for Jury.</p> <p>The reason of a charter requirement that notice be given within ninety days of a claim of damages arising from its negligence is that within that time opportunity will reasonably be afforded the claimant to give such notice; and in this case, there being evidence tending to show that the plaintiff was in a hospital for eight week's, absolutely helpless, and practically so for three months, and longer, it is held that the question should be submitted to the jury for their finding as to whether or not the plaintiff had been afforded a reasonable opportunity to give the notice in the time required.</p>

Appeal by defendant from Peebles, J., at April Term, 1914, of WaYNE. This action was brought to recover damages for injuries sustained by the negligence of defendant. The plaintiff, T. 0. Steele, was on 9 September, 1913, engaged as a carpenter in the construction of a five-story reenforced concrete building for IT. L. Grant, defendant, in the city of Goldsboro.

Appeal by defendants from Peebles, J., at May Term, 1914, of Chatham. This action was begun before the clerk for the partition of land, and upon a plea of sole seizin it was transferred to the civil-issue docket, and tried before a jury. Verdict and judgment for plaintiffs. Appeal by defendants.

Appeal by defendant from Connor, J., at November Term, 1914, of Edgecombe. This is an action to recover damages in tbe amount of $25,000 for personal injury, which, the plaintiff alleges resulted from the negligent conduct of the defendant on 30 June, 1913, at a point between Smithfield and Four Oaks in Johnston County, on what was formerly one of the branch lines of the Wilmington and Weldon Bailroad Company, and which is now a part of the Atlantic Ooast Line.